CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

THIS CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT (this “Agreement”) is entered into effective as of the date of execution by the individual and/or entity set forth below (“Receiving Party”) and Vantora, LLC, also doing business as Axcitement.com (“Company”) having a place of business at 582 Texas 121 Business, Lewisville, Texas 75057, (each, a “Party” and, together, the "Parties”). The Parties shall include any and all business units, divisions, subsidiaries, affiliates, joint ventures, successors, heirs and assigns of the respective Parties.

 

WHEREAS, the Parties are discussing and evaluating a potential business relationship or transaction, including specifically a potential licensing agreement for Axcitement Software for axe throwing lanes (the “Purpose”), which discussions and evaluation necessitate the disclosure by Company to Receiving Party of information considered confidential and proprietary by Company; and

 

WHEREAS, as a condition to the disclosure of such information by Company to Receiving Party and, if permitted hereunder, any of Receiving Party’s directors, officers, shareholders, employees, agents, contractors, consultants or advisors (collectively, “Representatives”), Receiving Party agrees to treat, and to cause the Representatives to treat, any such information in accordance with the provisions of this Agreement.

WHEREAS, the Company has developed a unique method of creating end grain targets, and using their projected software to play games on them. Receiving Party may make use of the end grain targets, which are part of the confidential information only if using the Company Projected Target systems on those targets and paying the applicable license fees and following the agreements  outlined in this document.

 

1. “Confidential Information” means the Purpose and the fact that the Parties are discussing or evaluating the Purpose, together with all information of, from or about Company and any of its affiliates, customers or members that is marked “confidential” or “proprietary” or which by its type, nature or context is something that should reasonably be known or understood to be confidential or proprietary, including, but not limited to; trade secrets; technical, developmental, operating, performance, governance, know-how or process information that is disclosed either (i) in a writing or other tangible form or (ii) orally. Confidential Information also includes all software, applications and related documentation and any notes, analyses, compilations, studies, interpretations or other documents prepared by Receiving Party which contain, reflect or are based upon any information furnished to Receiving Party pursuant hereto.

 

2. Receiving Party shall (i) treat all Confidential Information with the same degree of care (provided that such is at least a reasonable degree of care) to avoid disclosure to third parties as it normally uses to protect its own confidential information; and (ii) use the Confidential Information only for the Purpose, including the evaluation or consideration of the Purpose.

 

Notwithstanding the foregoing, Receiving Party shall not at any time use Confidential Information in any manner against, adverse or detrimental to Company.

 

(b) The Receiving Party shall assure that all persons who receive any of the Confidential Information directly or indirectly from it agree to keep the information confidential and will abide by the terms and conditions of this Agreement as if such persons were parties hereto and Receiving Party shall be responsible for any breach of this Agreement, including by any of its Representatives; and

 

 (c) The Receiving Party shall not tamper with, modify, adapt, translate, reverse engineer, decompile, disassemble or create derivative works from or based upon the Confidential Information, including any prototype, sample or model.
3. There shall be no liability for breach of the restrictions contained in Paragraph 2 on use and disclosure of Confidential Information:
(a) if the Receiving Party can demonstrate from written records that such information was already in the public domain or became publicly available through no breach of this Agreement by the Receiving Party;
(b) if the Receiving Party can demonstrate from written records that the information was rightfully in the Receiving Party's possession without obligation of confidence prior to receipt from Company or that the Receiving Party lawfully obtained said information from a third party who was under no obligation of confidence;
(c) if the Receiving Party can demonstrate from written records that such information was independently developed by the Receiving Party who had not had access to Company's Confidential Information;
(d) if such information is required to be disclosed by the Receiving Party to comply with applicable law or a judicial order or decree; provided, however, that the Receiving Party gives prior written notice of such disclosure to Company and takes reasonable and lawful actions to avoid and/or minimize the extent of such disclosure such that only that information which is legally required to be disclosed, be disclosed, and cooperates with Company to obtain any appropriate legal measures or assurances that the Confidential Information will be treated accordingly; or
(e) if such information is disclosed with the prior written consent of Company.
4. The Receiving Party agrees that neither it, nor any of its Representatives who are aware of the Transaction, will disclose (i) that the Parties are contemplating the Purpose, (ii) that negotiations or discussions are taking place or (iii) any terms, conditions or other information with respect to the Purpose, including the status thereof.
5. This Agreement shall be effective as of the date first set forth above (the “Effective Date”) and may be terminated with respect to subsequent disclosures upon thirty (30) days' prior written notice to the other Party. Unless earlier terminated pursuant to this Agreement or unless otherwise agreed by the Parties in writing, this Agreement shall automatically terminate one (1) year after the Effective Date; provided, however, the obligations of confidentiality and nondisclosure provided herein shall survive the expiration or termination of this Agreement.
6. Upon any termination of this Agreement or earlier written request by Company, the Receiving Party will return to Company, or upon Company’s written instruction shall destroy with written confirmation of such destruction, all Confidential Information, copies thereof and any notes, analyses, tables, summaries or other information or materials derived, created or prepared from Confidential Information received from Company under this Agreement.
7. The Receiving Party shall not be obligated to compensate Company for Confidential Information (except as may result from a breach of this Agreement) and the Receiving Party acknowledges and understands that no warranties or representations of any kind are given by Company with respect to the accuracy or completeness of the Confidential Information.
8. Confidential Information shall remain the sole and exclusive property of Company. Nothing in this Agreement shall be construed as granting to the Receiving Party any right, title or interest in or to any patent, trademark, license, copyright, trade secret or other right of Company.
9. Nothing in this Agreement shall be deemed to create, either express or implied, the power in either Party to bind the other. Neither Party shall be bound by the actions of the other, shall be liable for the debts of the other, or shall have a right to share in the profits of the other. This Agreement is not intended to be a joint venture, partnership or other formal business organization, and neither Party is under any obligation to enter into any further agreement with the other Party.
10. This Agreement shall not be construed in any manner to be an obligation to enter into any transaction or relationship or any other contract or agreement.
11. No waiver of any provision of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other provision hereof, nor shall such waiver constitute a waiver in any other instance.
12. This Agreement shall be binding on and shall inure to the benefit of Company and its respective successors and assigns. This Agreement may not be assigned in whole or in part by Receiving Party without the prior written consent of Company. Any attempted assignment without such prior written consent shall be void and unenforceable.
13. If any provision of this Agreement is determined to be in violation of applicable law, then such provision shall be void and the other provisions of this Agreement shall remain in full force and effect.
14. No modification to this Agreement shall be effective unless such modification is in writing and signed by an authorized representative of Company.
15. It is further understood and agreed that any breach of this Agreement would cause irreparable harm to Company and that Company shall be entitled to equitable relief, including but not limited to injunction or specific performance, as a remedy for any such breach. Neither Receiving Party nor any of its Representatives will oppose the granting of such relief. Such remedies shall not be deemed to be the exclusive remedies for a breach by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to the Company, including attorneys’ fees and costs.

Additionally, the breach of this Agreement for any location using the projected axe software as referenced in the attached document, will additionally result in the cancellation of all licenses of such software causing the axe software to cease to function.
16. This Agreement shall be governed by and interpreted according to the laws of the State of Texas. Venue for the resolution of all disputes arising hereunder shall be either Dallas or Denton County, Texas.
17. This Agreement may be executed by electronic signature.


IN WITNESS WHEREOF, this Confidentiality and Non-Disclosure Agreement
has been executed as of today's date.

SOFTWARE LICENSE AGREEMENT

THIS AGREEMENT is entered into as of  today's date ("Effective Date") by and between Vantora, LLC dba Axcitement, herein after Axcitement), with offices at 582 E State Hwy 121 Lewisville, TX 75057  ("LICENSOR") and the undersigned,  ("LICENSEE").

WHEREAS, Licensee wishes to license software for the purpose of Axe Throwing Lanes and AXCITEMENT desires to license this software to licensee.


NOW THEREFORE, the parties hereto agree as follows:

1. GRANT OF LICENSE

Subject to the terms and conditions of the Agreement, AXCITEMENT grants to Licensee a non-exclusive, non-transferable license to use Axcitement Axe Software (the "Licensed Programs") for the purpose of Projected Axe Throwing Lanes.  Licensee may use the Licensed Programs in executable format for its own use.  Licensee may not, however, transfer or sublicense the Licensed Programs to any third party, in whole or in part, in any form, whether modified or unmodified.

2. CONSIDERATION TO AXCITEMENT

In the purchase of the Axcitement Software and Hardware package, the first year license fee is included. The one year license will be renewed at the end of the year and Licensee shall pay, license fees of $250 annually per copy of the software, or $25 monthly per copy of the software. This license may be cancelled at any time with 30 days notice. These prices are subject to change, but shall not rise more than 10% in any given 2 year period.  Additional games running on the Axcitement Software are purchased and do not need annual licenses, but need to be run on a machine that has a valid and current license.

3. COPIES

Licensee may not make any copies of the Licensed Program. The software is only to run on the provided Axcitement Computer system and cannot be moved, modified, or transferred in any way. Any attempt to duplicate or transfer the software can result in all copies of the Licensee’s Axcitement Software to cease functioning.  Additionally to assure proper functionality of the software, no other sofware other than Axcitement approved software can be installed, stored or run on the computer system supplied with this software.

 

In the event the Licensee purchases backup computer(s), they will contain the software but cannot be used unless replacing a licenesed copy that has failed. In the event that backup computers are used in conjunction with licensed computers, any and all codes may be suspended making them unusable.

4. OWNERSHIP

The original and any copies of the Licensed Programs, made by Licensee, including translations, compilations, partial copies, modifications, and updates, are the property of AXCITEMENT.

5. PROPRIETARY RIGHTS
 
Licensee recognizes that AXCITEMENT regards the Licensed Programs as its proprietary information and as confidential trade secrets of great value.  Licensee agrees not to provide or to otherwise make available in any form the Licensed Programs, or any portion thereof, to any person other than employees of Licensee without the prior written consent of AXCITEMENT.  Licensee further agrees to treat the Licensed Programs with at least the same degree of care with which Licensee treats its own confidential information and in no event with less care than is reasonably required to protect the confidentiality of the Licensed Programs.

6. TERM

The license granted hereunder shall continue for one year unless and until terminated pursuant to Section 7 hereof and subject to Licensee's proper performance of its obligations hereunder.  At the end of the year, Licensee may license the software use for another year by paying the annual license fee or on license on a month basis by authorizing the monthly amount.

7. TERMINATION

AXCITEMENT may terminate this Agreement if Licensee is in default of any of the terms and conditions of this Agreement and fails to correct such default within ten (10) days after written notice thereof from AXCITEMENT.  The Licensee may terminate the agreement with 30 days written notice for any reason.



8. TERMINATION CERTIFICATE

In the event of termination, Licensee will immediately discontinue use of the Licensed Programs.  The provisions of Sections 4, 5, 8, 11, and 13 hereof shall survive any termination of this Agreement.

9. MAINTENANCE SUPPORT

In order to maintain the license, the hardware must have an internet connection where it can “phone home” periodically.  If the system cannot phone home for several days, and / or any modifications are made to try to stop the software from phoning home, the system will shut down until which time it can reactivate on line. It is the responsibility of the Licensee to provide the required internet connection. During the phone home process if updates are available to the software, it will automatically be downloaded and installed. It is the responsibility of the Licensee to maintain security on the internet connection. It is advised to have a strong password on a firewall router and use hard wire connections to provide a secure internet connection.Axcitement agrees to work with the Licensee’s IT support to provide the necessary information to enable the required network configuration to enable the required communication.

In addition to the software support, all purchased hardware computer and projector systems will be covered under an on going warranty for all systems covered under the license. This will cover repair or replacement of the Projector and or Computer in the event they stop working. This will not cover abuse, fire, water, or electrical spike damage, nor bulbs for the projector, nor the keyboard and mouse.  The licensee is responsible for shipping charges.

10. LICENSEE CONTROL OF CONTENT

The AXCITEMENT platform may include the ability to upload images, logos, etc, and it is the responsibility of the Licensee to assure that no copyright or other laws are broken by their or their customers use of the ability to upload images to the target system.

11. WARRANTY DISCLAIMER

AXCITEMENT licenses, and Licensee accepts, the licensed programs "AS IS." AXCITEMENT PROVIDES NO WARRANTIES AS TO THE FUNCTION OR USE OF THE LICENSED PROGRAMS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE.  THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED PROGRAM IS WITH LICENSEE.  LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED PROGRAMS WILL MEET LICENSEE'S REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED PROGRAMS WILL BE UNINTERRUPTED OR ERROR FREE.

12. PATENT AND COPYRIGHT INDEMNITY

AXCITEMENT shall have no liability for any claim of patent, copyright or trade secret infringement based on the use of a Licensed Program in any form other than the original, unmodified form provided to Licensee with hardware, software or data not supplied by AXCITEMENT where the used Licensed Programs alone in their original, unmodified form would not constitute an infringement. The foregoing states Licensee's entire liability for infringement or claims of infringement of patents, copyrights or other intellectual property right along with the clause in section 10 above.


13. LIMITATION OF LIABILITY

AXCITEMENT'S LIABILITY TO LICENSEE UNDER ANY PROVISIONS OF THIS AGREEMENT FOR DAMAGES FINALLY AWARDED SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID HEREUNDER BY LICENSEE TO AXCITEMENT.  IN NO EVENT SHALL AXCITEMENT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF USE, LOSS OF PROFITS OR INTERRUPTION OF BUSINESS, HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY.

14. NOTICES

All notices in connection with this Agreement shall be in writing and may be given by certified, registered, or first class mail, digital or personally delivered at the address set forth on the front page. For purposes of this Agreement, a notice shall be deemed effective upon personal delivery to the party or if by mail five days after proper deposit in a mail box.

15. SUCCESSORS

This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective representatives, successors and assigns except as otherwise provided herein.

16. SEVERABILITY

In the event any provision of this Agreement is determined to be invalid or unenforceable, the remainder of this Agreement shall remain in force as if such provision were not a part.

17. GOVERNING LAW/FORUM

This Agreement shall be governed and interpreted by the laws of the State of Texas, Texas shall be the appropriate venue and jurisdiction for the resolution of any disputes hereunder. Both parties hereby consent to such personal and exclusive jurisdiction.

18. NON-ASSIGNMENT

This Agreement and the licenses granted by it may not be assigned, sublicensed, or otherwise transferred by Licensee without the prior written consent of AXCITEMENT.

19. ENTIRE AGREEMENT

This Agreement sets forth the entire understanding between the parties with respect to the subject matter hereof, and merges and supersedes all prior agreements, discussions and understandings, express or implied, concerning such matters.  This Agreement shall take precedence over any additional or conflicting terms which may be contained in Licensee's purchase order or AXCITEMENT's order acknowledgment forms.